FCC hearing: disagreement over the “broadband of tomorrow”

All five FCC Commissioners headed to Pittsburgh today for an open hearing on …

American artists are "the world's storytellers," said FCC Commissioner Deborah Taylor Tate at today's third FCC en banc hearing of the year; while this might sound a bit patronizing to the rest of the world, it goes down well during discussions about file-sharing and broadband. These storytellers are currently watching "the art of this country vanish into thin air," Tate continued, "as a result of illegal downloading." Tate stopped short of putting out solutions, but she made it clear that the $200 million "lost" in her home state of Tennessee every year had to stop somehow.

All five FCC commissioners trekked out of their eighth-floor Washington DC offices for a long evening of hearings today at Carnegie Mellon University in Pittsburgh, where Chairman Kevin Martin used his first words of the night to refer to a school dean as "Weasel" (his name is pronounced "Wessel").

The broadband of tomorrow... and the networks of today

The hearing was designed to talk about the "broadband of tomorrow," but what was striking was the level of agreement on certain key points. Apart from AT&T's contention that building out network capacity to meet ongoing demand was not physically possible (translation: "we need to throttle like the Boston Strangler!"), most panelists seemed united in a negative assessment of closed networks (cell phones), closed set-top boxes, NebuAd (CMU professor emeritus David Farber called such systems "almost obscene"), and ISP filtering.

Take the question of ISP filtering for copyrighted works. A representative from YouTube, David Eun, gave a nice description of why filtering "copyrighted material" is hard. For one thing, nearly all created content in the US is copyrighted, even dancing-dog video clips. That means the problem to be solved is not stopping the flow of "copyrighted content" online, but finding out what rights each uploader has for each bit of content. This is a tough problem, one not easily solved by simply looking at a file as it passes across a network.

Jon Peha, a CMU computer science prof, told the commissioners that illegal file-sharing was a real problem; in a recent study of his at Illinois State University, a minimum 51 percent of all students used P2P apps each month, with most observed transferring copyrighted files.

But Peha pointed out the problems raised by ISP filtering; If ISPs block, what level of proof do they need, and who should they show it to (since some P2P apps may compete with ISPs' own content offerings, ISPs could gain a competitive advantage by accepting weak evidence)? What disclosure should be required? What actually constitutes a copyright violation, and how can machines judge "fair use?" How effective will such tools be once countermeasures like pervasive cryptography are widely employed?

Mark Cavicchia, the CEO of WhereverTV, bashed ISP plans to severely cap downloads. He pointed to Time Warner's 5GB per month trial in Texas, a limit he called "ludicrous." His business, and many like his, depends on reliable access to consumers. If a few users are really causing huge problems for ISPs, Cavicchia said the solution was to target them, not to penalize everyone.

The calls for "openness," "freedom," and transparency were numerous, with every commissioner well aware of broadband's power. Commissioner Copps called access to broadband almost a "civil right," for instance, while Kevin Martin talked up the need for free, low-speed "lifeline" broadband to everyone. But it's clear that Commissioners Tate and Robert McDowell are more sympathetic to staying out of the way as ISPs make their own decisions about filtering and network management.

Leave the engineering problems to the engineers?

McDowell, in particular, said in his own remarks that "those who seek to frustrate today's empowered consumers do so at their peril" (translation: "No need for the government to get involved, empowered consumers!"). He went on to add, to some applause from the crowd, that discussion about network management was needed, but that "engineers should solve engineering problems."

It's unfortunately simplistic rhetoric, as technical solutions are a product of all sorts of less-technical decisions (how much will we invest in infrastructure upgrades and bandwidth this year?). Network management has no a priori "right answers;" the solutions depend on the goals of network management, and all sorts of groups from Free Press to AT&T to end users have different ideas about how a network should look.

This is the point of the FCC's famous Internet policy statement (which Comcast currently argues cannot be enforced). The statement provides the four basic principles that ISPs need to follow; with the goals given, engineers can be turned loose in all sorts of creative ways to find solutions. But those four general principles still remain open to widely varying interpretations, as shown by the recent battle with Comcast at the FCC.

Such decisions are inherently political and economic, not simply "technical." So long as the FCC can resist the urge to step in and actually mandate particular approaches and techniques, instead confining itself to big-picture goals, its policies stand a much greater chance of actually helping create the "open Internet" everyone says they want.